-HSSXHE 


Canadian  •AlERiCM^ 


FISH 


ES. 


BY 


WILLIAM    B,   ELL.IS,0;j^J. 

(Of  tH«f  KewVork  HRr). 


'> 


THE  CANADIAN-AMERICAN   FISHERIES. 


Difficulties  have  arisen  from  time  to  time  ever  since  the 
bc}^innin<j;  of  this  century,  rehitive  to  the  fisheries  about 
Britisli  North  America.  The  Government  of  the  United 
States  has  at  all  times  appreciated  the  great  value  of  those 
fisheries  and  has  endeavored  from  time  to  time  to  en- 
large the  rights  and  privileges  of  American  fishermen  in 
the  waters  adjoining  that  country.  The  course  pursued  by 
the  United  States  in  this  matter  furnishes  another  instance 
of  their  efforts  to  secure  new  and  valuable  concessions  from 
other  governments  to  the  welfare  and  prosperity  of  the 
American  people. 

The  enormous  value  of  a  right  to  participate  in  tishiag 
in  the  waters  adjoining  tho;  Britisli  Colonies  has  justifier.  the 
American  Government  in  making  every  honorable  effort  to 
secure  that  right.  During  the  time  when  the  population  of 
the  United  States  was  comparatively  small,  notably  before 
the  revohition,  the  waters  otf  the  Atlantic  coast  of  that 
country  were  amply  sufficient  to  supply  the  demand;  but, 
with  the  great  growth  of  the  population  and  the  decrease  in 
the  supply,  the  American  fishermen  were  compelled  to  seek 
new  fishing  grounds,  which  they  found  in  the  waters  adjoin- 
ing what  is  now  the  Dominion  of  Canada.  These  grounds, 
so  long  as  they  are  att'ected,  as  they  now  are,  by  the  currents 
from  the  north,  replete  as  at  present  with  food  suitable  for 
fish,  must  remain  most  prolific.  Al)out  six  hundred  Ameri- 
can vessels  aiDiually  engage  in  the  nuickerel  fishing  in 
Canadian  waters,  and  the  nuniber  of  the  vessels  is  rapidly 
increasing.  Each  of  those  vessels  takes  on  an  average  not 
less  than  two  hundred  barrels  of  mackerel  of  the  value  of 
about  ten  dollars  per  barrel.  The  importation  of  fish  to  the 
New  England  States  has  assumed  very  large  proportions  and 
is  of  immense  value  to  New  England  tishermen  who  see  loss 
of  occu])ati()n  and  livelihood  in  case  Canada  cannot  be  in- 
duced to  allow  them,  to  ccHitinue  hb  they  have  hitherto  done 
under  treaties,  now  exi)ired. 


2 

On  tho  other  hand,  tlio  \a\\u)  of  the  lisherica  in  question 
are  of  great  importance  to  Canad.i,  and  there  seems  to  be  a 
strong  inclination  in  that  country  to  protect  what  she  may 
deem  her  rights  in  the  matter.  She  feels,  it  would  appear, 
that  that  source  of  wealth  which  nature  has  so  lavishly 
given  her  should  be  harvested  for  her  benefit  and  not  that 
of  another  government.  It  is  estimated  that  the  value  of 
the  fisheries  to  Canada  in  1884  was  about  $15,000,000,  em- 
ploying about  60,000  men  and  23,000  boats.  These  figures 
are,  of  course,  exclusive  of  Newfoundland,  which  is  not  a 
part  of  the  Dominion  of  Canada. 

With  some  idea  of  the  attractiveness  of  the  fisheries  off 
the  shores  of  the  Dominion  both  to  its  own  people  and  to 
the  people  of  the  United  States,  it  will  be  well  to  ascertain 
if  possible,  what  are  the  legal  claims  of  each  to  the  waters  in 
dispute. 

When  British  North  America  and  the  United  States  were 
colonies  of  Great  Britain  the  rights  to  fish  were  common  to 
both.  When  Great  Britain  formally  acknowledged  the  inde- 
pendence of  the  colonies,  the  United  States  obtained  "  the 
liberty "  to  take  fish  on  the  coasts  of  Newfoundland,  but 
not  to  dry  or  cure  the  same  there.  They  were  also  granted 
"  the  liberty  "  of  taking  and  curing  fish  on  the  coasts  and  in 
the  bays  and  creeks  of  all  British  possessions  in  North 
America  as  long  as  the  same  remained  ansettled.  Their 
right  "  to  enjoy  unmolested  the  fisheries  on  the  banks  of 
Newfoundland  and  at  all  other  places  on  the  deep  sea  where 
the  inhabitants  of  both  countries  used  at  any  time  previously 
to  fish  "  was  explicitly  acknov/ledged  in  the  third  article  of 
the  same  treaty,  which  was  signed  at  Paris  on  September  3, 
1783.  During  the  years  which  elapsed  between  the  signing 
of  this  treaty  and  the  breaking  out  of  the  war  of  1812  the 
British  population  increased  along  tho  shores  of  the  bays 
and  creeks  of  Nova  Scotia  and  New  Brunswick,  and  theu*  in- 
terest in  tho  fisheries,  enjoyed  in  common  with  the  Americans, 
became  very  much  greater.  When  the  war  came  to  a  close 
the  question  of  the  fisheries  was  revived  and  Great  Britain 
considered  that  any  "  liberty  "  formerly  extended  to  the  United, 
States  had  naturally  terminated,  and  refused  to  grant  to  the 
Americans  " gratuitously"  the  privileges  they  formerly  en- 
joyed  of  ^\fshin(j  imtldn  the  limits  of  British  territory  or  of 
using  the  shoi'es  of  the  Jxritish  territories  for  purposes  connected 
with  the  fisheries,"  At  tho  same  time  they  refused  to  con- 
aider  the  claim  sot  up  by  tho  United  States  Goveniment,  of 
"  a)i  immemorial  and  prescriptii^e  right  to  the  fisheries  "  claim- 
ing t/iat  any  rights  enjoyed  hy  the  people  of  the  old  colonies  in 
common  with  other  liritish  suhjects  ceased  in  those  countries  or 
waters  which  loere  still  British  possessioi\s  when  the  former 
became     independent.     When    no    undtsratanding    could    be 


3 

reached  cluiing  the  negotiations  which  ended  with  the  Treaty 
of  Ghent  in  1814,  Great  Britain  instructed  the  officers  of  her 
tieet  stationed  in  British  American  waters  not  to  interfere 
with  American  vessels  on  the  Newfoundhmd  banks,  oi  in  the 
Gulf  of  St.  Lawrence,  or  on  the  high  seas,  but  to  exclude 
them  from  the  harboi-s,  bays  and  creeks  of  all  His  Majesty's 
l)ossessions.  Several  American  vessels  were  subsequently 
captured  for  trespassing  in  British  waters,  and  the  Govern- 
ment of  the  United  States  at  last  came  to  an  amicable  ar- 
rangement on  a  question  which  might  at  any  moment  lead 
to  a  serious  international  difficulty.  The  issue  was  the 
treaty  signed  by  England  and  the  United  States  on 
October  20,  1818,  in  which  the  rights  of  these  two  nations 
were  clearly  defined.  By  the  Jird  article  of  that  treaty  it 
was  agreed  that  the  inhabitants  of  the  United  Stjites  should 
have  forcer,  in  common  with  British  subjects,  the  liberty  to 
take  and  cure  fish  on  certain,  parts  of  Newfinmdland  and 
Lahnidur,  and  on  the  coasts  of  the  Magdalen  Islands,  under  a 
few  restrictions,  on  which  it  is  not  necessary  to  dwell,  since 
no  serious  differences  have  arisen  on  the  subject.  In  the 
same  article  the  United  States  "  renounce  forever  any  liherty 
hereto foi'e  enjoyed  or  claimed  by  the  inhahitants  thereof  to  take, 
dry,  or  cure  fish  on  or  loithin  three  marine  miles  of  any  of  the 
coasts,  hays,  creeks  or  harbors  "  of  the  British  dominions  in 
America  not  included  within  the  limits  just  mentioned.  At 
the  same  time  American  fishermen  were  to  be  permitted  "  to 
enter  such  hays  and  harbors  for  the  purpose  of  shelter  and  of 
repairing  damages  therein,  of  purchasing  wood,  of  obtaining 
ivatcr,  and  for  no  other  purpose  whatever. 

The  whole  controversy  in  past  years  between  Great  Britain 
(representing  the  Dominion  of  Canada  and  Newfoundland) 
and  the  United  States  has  turned  upon  the  true  effect  of  the 
renunciation  on  the  part  of  the  latter  "  of  any  liberty  here- 
tofore enjoyed  to  take,  dry  and  cure  fish  on  or  within  three 
marine  miles  of  any  of  the  coasts,  bays,  creeks  or  harbors  " 
of  British  North  America.  In  order  to  understand  the  im- 
portance of  this  point — which  is  in  effect  the  fishery  ques- 
tion constantly  crojjpiug  up  when  all  temporary  arrange- 
ments like  the  Washington  Treaty  of  1871  cease  between 
Canada  and  the  United  States — it  is  necessary  to  study  the 
natural  configuration  of  the  eastern  or  maritime  provinces 
of  British  North  America.  Looking  at  the  map,  we  find 
first  of  all  the  large  island  of  Newfoundland  standing  at  the 
approaches  of  the  Gulf  of  St.  Lawrence.  The  French  and 
Americans  have  free  access,  as  a  matter  of  right,  to  the 
Grand  and  other  banks,  and  certain  privileges  of  catching 
and  curing  fish  on  the  coasts.  American  fishermen  fre(juent 
the  Grand  Banks  and  come  at  times  into  the  bays  and 
harbors  for  repairs  and  bait ;  and  the  only  important  ques- 


tion  that  has  arisen  with  respect  to  Newfoiiiulhind  is  the 
vahie  of  these  privileges  withiu  her  territorial  limits.  Leav- 
ing Newfouiidlaucl,  we  come  to  the  lishiiig  groiinils  much 
frequented  by  the  Americans  for  the  mackerel,  herring  and 
other  fisheries.  We  see  the  island  of  Capo  Breton,  separ- 
ated from  the  mainland  of  Nova  Scotia  by  a  narrow  strait 
known  as  the  Gut  of  Canseau.  This  passage,  whose  average 
l)readth  does  not  exceed  two  and  a  half  miles,  takes  us  into 
the  Straits  of  Northumberland,  which  lie  between  Nova 
Scotia  and  Prince  Edward  Island.  We  are  now  in  the  (lulf 
of  St.  Lawrence  ;  in  the  michllc  of  this  gulf  are  the  Magdalen 
Islands,  the  home  of  Canadian  fishermen.  The  coast  of  New 
Brunswick,  which  forms  the  western  boundary  of  the  gulf,  is 
indented  by  several  bays,  one  of  which — the  Bay  des  Cha- 
leurs,  is  one  of  the  most  prolific  fishing  grounds  of  the  con- 
tinent. In  this  bay,  and  on  the  coasts  of  Cape  Breton  and 
Prince  Edward  Island,  the  American  fishermen  during  this 
century  have  dragged  up  fish  to  an  enormous  value.  But 
leaving  the  Gulf  of  St.  Lawrence  and  passing  around  the 
southern  coast  of  Nova  Scotia  we  come  to  the  Bay  of  Fundy, 
bounded  on  the  north  by  the  province  of  New  Brunswick, 
and  having  a  small  portion  of  the  United  States  territory 
opposite  to  its  southern  headland.  All  the  valuable  fish  to 
be  caught  in  North  America  frequent  this  bay  and  the 
waters  of  the  Gulf  of  St.  Lawrence.  These  are  the  great 
fishing  grounds  so  long  envied  by  the  fishermen  of  New 
England. 

Now,  it  is  admitted  that  the  largest  quantities  of  fish  are 
found  within  three  marine  miles  from  the  coasts  and  bays 
of  the  maritime  provinces.  Great  Britain  has  always  main- 
tained that  the  three  rn<irine  miles  from  the  coasts,  bays  and 
creeks  of  her  possessions  7nnst  be  meamir'ed  from  the  head- 
hinds  or  entrance  of  such  dassex  of  indents.  But  this  asser- 
tion of  the  territorial  and  maritime  jurisdiction  of  the 
Dominion  of  Canada,  as  a  section  of  the  British  Empire,  is 
not  admitted  by  the  United  States,  and  they  have  heretofore 
raised  the  issue,  that  the  line  of  demarcation  between  exclu- 
sive and  common  water  should  not  be  measured  from  the 
headlands  of  bays,  but  should  tV)llow  the  shores  of  those  in- 
dents as  if  they  were  sinuosities  of  the  coasts.  If  their  con- 
tention is  founded  on  some  principles  of  international  law, 
or  sustained  by  authority,  then  it  would  be  difficult  to  ex- 
clude them  from  the  most  important  fishing  grounds  of 
America.  Wheaton  states  the  rule  as  follows:  "The  mari- 
time territory  of  every  State  extends  to  the  ports,  harbors, 
bays,  mouth  of  rivtu's  and  adjacent  parts  of  the  sea  inclos(Ml 
by  headlands  belonging  to  the  same  State."  Chancellor 
Kent  admits  that  bays  like  Delaware  Bay,  which  nniy  bo 
compared  in  many  respects  to  Bay  des  Chaleurs,  is  wholly 


within  tho  teiritoiiiil  juiisilictioii  of  the  Unitcil  Status,  iind 
thut  this  jurisdiction  extouds  for  three  miles  seaward  from 
its  h(!adlaiids,  Capes  May  and  Heidopeii.  The  same  rule 
applies  to  Chesapeake  and  Massachusetts  Bays,  which  are 
also  inlets  of  large  size. 

Daniel  Webster  admitted,  when  the  question  came  under 
his  notice  in  1852,  that  the  claim  of  England  to  draw  a  line 
from  headland  to  lieadlaial,  and  to  capture  all  American 
fishermen  who  might  follow  their  pursuits  inside  of  that  line, 
was  well  founded,  and  that  "  it  was  undoubtedly  an  over- 
sight in  the  Convention  of  1818  to  make  so  large  a  conces- 
sion to  England.  If  we  look  at  the  tirst  article  t)f  this  Con-' 
vention,  we  find  that  tlie  United  States  hereby  renounce  for- 
ever  any  liberty  Iteretoforc  enjoyed  or  claimed"  hy  their  jyeople 
in  /iritish  vatera.  In  the  Franconian  case,  whicJi  came  be- 
fore the  British  Courts  in  187G,  the  question  involved  was 
whether  or  not  a  foreigner  commanding  a  foreign  vessel 
could  legally  be  convicted  of  manslaughter  connuitted  whilst 
sailing  by  the  external  coast  of  England,  within  three  miles 
from  the  sliore,  in  the  prosecution  of  a  vo3age  from  one 
foreign  port  to  another.  The  Court,  by  a  majority  of  seven 
judges  to  six,  held  the  conviction  bad  on  the  ground  that 
the  jurisdicti(^n  of  the  Common  Law  Courts  extended  oul}^ 
to  ofi'enses  conmiitted  within  the  realm,  and  that  at  common 
law  such  realm  did  not  extend  on  the  external  coasts  beyond 
low  water  mark.  None  of  the  Judges,  however,  doubted 
that  Parliament  had  power  to  extend  the  laws  of  the  realm 
to  a  Z(me  of  three  miles  around  the  outer  coast,  if  it  saw  tit 
to  do  so.  The  Lord  Chief  Justice  of  En<»land,  bv  whose 
castuig  judgment  the  conviction  was  quashed,  stated,  "  If  an 
otl'ense  was  comndtted  "  he  said,  "in  a  bay,  gulf  or  estuary, 
inter  fauces  terra',  the  common  law  would  deal  with  it  l)e- 
cause  tlu!  parts  of  the  sea  so  circumstanced  were  held  to  be 
within  the  body  of  the  adjacent  county  or  counties."  In 
another  case,  which  was  decided  by  the  Judicial  Comnuttee 
of  the  Privy  Council,  in  1877,  the  cpiestion  arose  between 
two  telegraph  companies,  whether  Conce])tion  Bay  in  New- 
foundland (which  is  rather  more  than  twenty  miles  wide  at 
iis  mouth  and  runs  inland  between  forty  and  fifty  miles)  was 
within  British  waters  or  a  part  of  the  high  seas.  One  of  the 
conq>anies  laid  a  cable  and  buoys  within  the  bay  at  a  dis- 
tance of  more  than  three  miles  from  the  shore,  and  the  rival 
conq3any  contended  that  the  former  had  iidringed  rights 
granted  to  them  by  the  Legislature  of  Newfoundland.  The 
Judicial  Committee  held  that  Conception  Bay  was  within 
territorial  dominion  of  Great  Britain.  The  Canadians  claim 
that  all  bodies  of  water  or  inlets  inter  fauces  terne,  being 
then  within  the  territorial  jurisdiction  of  England  and  her 
dependencies,  it  follows  that  when  the  Americans,  by  the 


6 

Convention  of  1818,  cxplicJily  renounc&l  all  liherft/  prevlouslt/ 
enjoyed  tojisli  "on  or  wiih'ni  three  inarine  7inl.es  of  any  of  the 
coads,  oays,  creehs  or  harhors  of  his  Britannic  Majesty's  do- 
nmiions,''  they  gave  up  any  claims  they  may  previously  have 
had,  and  confined  themselves  to  the  waters  a  league  distant 
from  those  indents  measured  from  headland  to  headland. 
The  British  Government,  however,  as  alleged  by  Canadians, 
in  its  desire  to  afford  every  facility  to  the  United  States  con- 
sistent with  their  sovereign  rights  and  the  interests  of  the 
people  of  British  North  America,  have  since  1845  thought  it 
expedient  to  relax,  in  the  case  of  the  Bay  of  Fundy,  the  ap- 
plication of  the  rule  to  which  they  have  generally  adhered. 
They  have  permitted  American  fishermen  to  pursue  their 
calling  in  any  part  of  the  bay,  provided  they  should,  not  ap- 
proach, except  in  cases  specif  ed  by  the  treaty  of  ISIS,  loithin 
three  miles  of  the  entrance  of  any  hay  on  the  coast  of  Nova 
Scotia  or  New  Bransvjick.  While  maintaining,  as  a  matter  of 
strict  construction,  that  this  large  bay  is  rightfully  claimed 
by  Great  Britain  as  a  body  of  Avater  within  the  meaning  of 
the  Convention  of  1818,  they  have  considered  that  in  one 
respect  this  inlet  could  be  treated  exceptionally,  inasmuch 
as  there  was  some  plausibility  in  the  reasoning  of  the  United 
States,  that  the  headlands  were  not  only  sixty  miles  apart, 
but  one  of  them  was  not  British  ;  and  that,  as  pointed  out 
by  Mr.  Everett  to  Lord  Aberdeen  in  1844 :  "  Owing  to  the 
peculiar  confguration  of  the  coasts  of  this  arm  of  the  sea,  there 
is  a  succession  of  hays  indenting  the  shoreshoth  of  Nova  Scotia 
and  New  Brunswick,  within  any  distance  not  less  than  three 
miles,  from  which  Ataerican  -fishermen  were,  necessarily  ex- 
cluded by  holding  the  vjhole  body  <f  water  to  be  i?i  the  British 
ter7'ifo7'ial  limits.''  The  same  argument  could  not  be  used 
in  the  case  of  the  Bay  of  Ohaleurs  or  other  important  indents 
of  the  coasts. 

The  imperial  aiithorities  have  on  many  occasions  strictly 
maintained  the  rights  they  possess  under  tl)e  law  of  nations. 
From  1818  to  1854  the  British  cruisers  detailed  by  the  Im- 
perial and  Colonial  Government  for  the  protection  of  their 
fisheries  captured  and  confiscated  several  American  vessels 
that  were  found  ranging  at  points  varying  from  quite  near 
the  shore  to  a  distance  of  upwards  of  ten  miles  from  land, 
on  the  ground  that  they  were  within  the  headlands  of  bays. 
In  1854,  after  considerable  negotiation  for  years,  the  two 
Governments  arranged  a  Reciprocity  Treaty,  which  tempo- 
rarily settled  the  increasing  difficulties  on  the  question.  By 
this  treaty  the  United  States  obtained  free  access  to  the 
fishing  grounds  on  the  east  coast  of  British  North  America, 
and  certain  natural  products  of  these  two  countries,  like 
fish,  coal,  flour,  meal,  lumber  and  salt,  were  allowed  to  enter 
into  each  free  of  duty.     This  arrangement  was  of  undoubted 


lulvantuge  to  both  countries  tVoiii  a  purely  coiiiinercial  point 
of  view.  Not  only  tlid  it  settle  for  the  mouieut  au  ever- 
present  cause  of  irritation,  but  it  t)pened  a  lar^e  and  increas- 
ing market  to  the  export  trade  of  British  North  America, 
while  the  Americans  were  able  fco  prosecute  one  of  their 
great  industries  at  a  decided  advantage,  and  at  the  same 
time  obtain  additional  buyers  for  their  tlour,  corn,  meal  and 
manufactured  goods.  The  Americans,  by  their  great(^r  en- 
t(!rprise  and  the  superiority  of  their  vessels,  practically  beat 
the  British  American  fishermen  in  theii*  own  waters,  and 
derived  advantages,  it  was  claimed,  beyond  any  granted  by 
the  United  States.  In  those  days  the  provinces  were  isola- 
ted from  each  other,  and  a  commercial  or  political  union  be- 
tween them  seemed  still  far  off.  In  the  absence  of  such  a 
union,  the  people  were  not  animated  by  a  national  feeling, 
but  some  of  them  began  to  consider  whether  a  closer  con- 
nection with  the  United  States  was  not  among  the  i)robabil- 
ities  of  the  future.  Manufactures  were  brought  in  large 
quantities  from  the  United  States  in  return  for  the  natural 
products  sent  them  by  the  provinces,  and  there  was  no  pros- 
pect of  the  growth  of  a  native  manufacturing  industry  to  add 
to  the  wealth  and  give  additional  employment  to  the  peo- 
ple, large  numbers  of  whom  were  aimually  leaving  the 
country  for  the  manufacturing  districts  of  New  England. 
Whilst  the  treaty  lasted  the  balance  of  trade  with  respect  to 
manufactured  goods,  amounted  to  X18,000,000  sterling  in 
favor  of  the  United  States.  The  treatv  came  to  an  end  in 
1805  hi/  the  action  of  the  Washington  Government. 

In  the  meantime,  while  the  people  of  the  provinces  were 
endeavoring  to  consolidate  their  Government  and  establish 
a  federation  on  a  sound  basis,  they  found  themselves  again 
threatened  with  the  fishery  question.  The  Ct)Uvention  of 
1818  was  again  in  force,  and  the  fishermen  of  New  England 
were  alleged  to  be  once  more  ranging  in  their  waters.  The 
efforts  of  the  two  governments  to  bring  about  a  satisfactory 
commercial  arrangement  were  entirely  unsuccessful.  The 
question  then  constantly  pressed  itself  upon  then)  how  best 
to  meet  the  difficulty  of  maintaining  their  rights  without 
bringing  about  any  serious  international  complication.  The 
correspondence  between  England  and  Canada,  as  it  ap])ears 
in  the  Canadian  Blue  Books,  from  18(17  to  1871,  is  not  very 
flattering  to  the  national  vanity  of  those  Englishmen  who 
believe  there  are  times  when  a  little  firmness  is  necessary 
in  the  maintenance  of  undoubtid  Imperial  rights.  All  the 
despatches  of  the  British  Government  are  in  the  (hrection 
of  c(mci'liating  the  United  States  in  every  way  possible,  until 
at  last  it  was  pointed  out  in  one  Canadian  Minute  of  Coun- 
cil that  "  the  course  suggested  (the  freedom  of  the  fisheries 
for  another  year)  would  certainly  be  regarded  by  the  Amer- 


8 

icaii  people  as  an  evidence  ol*  weakness  on  the  part  of  Great 
Britain,  and  of  an  indisposition  to  raaintaii]  the  rights  of  the 
colonies."  The  answers  of  the  Canadian  Government  to  the 
despatches  from  the  imperial  authorities  are  distinguished 
throughout  by  an  assertion  of  the  rights  and  interests  of 
Canada.  Concession  after  concession  was  made  to  the 
United  States,  until  at  one  time  it  did  look,  as  Mr. 
Mitchell,  the  Minister  of  Marine  and  Fisheries,  pointed 
out  to  his  colleagues,  there  was  every  danger  that  "  the 
hesitation  on  the  part  of  England  to  assert  an  undoubted 
national  right  would  be  misconstrued  and  be  made  the 
ground  for  othiu'  and  mores  serious  exactions,  until  such  a 
point  is  reached  that  neither  country  can  recede  from  with 
honor."  However,  the  Canadian  Government  acquiesced  in 
the  suggestion  of  Her  Majesty's  Ministers  at  the  very  outset, 
and  adopted  the  temporary  expedient  of  issuing  season 
licenses  to  Americum  tishing  vessels,  at  a  nominal  tonnage 
rate,  "  so  as  tV)rmally  to  preserve  the  light  of  sovereignty 
without  occasioning  any  dangerous  complications,  such  as 
were  api)rehended  by  the  imperial  authorities."  American 
fishermen  were  restraintid  at  first  to  bays  under  ten  giu)- 
graphical  miles,  and  subsequently  to  those  only  under  six 
miles  in  width — a  concession  entirely  in  accord  with  the  de- 
mands of  the  United  States  bi^fore  and  since  1854.  During 
tilts  four  years  this  system  remained  in  force  it  was  evaded, 
and  at  last  became  practically  worthless.  In  the  first  year 
of  its  existence  354  licenses  were  taken  out,  but  they  dropptul 
to  '25  in  1869.  Vice-Admiral  Wellesley,  then  in  com- 
mand of  the  North  American  fleet,  considered  it  his  duty  to 
point  out  to  tlu!  Secretary  of  tlm  Admiralty  that,  "as  acon- 
seipience  of  the  continued  indulgence  towards  the  Ameri- 
cans, very  few  colonial  fishermen  are  engaged  in  fishing, 
owing  to  the  taritt*  inq)t)sed  by  the  United  States  on  fish 
imported  in  colonial  vessels,  and  colonial  fishermen,  there- 
fons,  in  consid(!rable  numbers,  man  American  vessels,"  The 
government  of  Canada,  led  then,  as  now,  by  Sir  John  Mac- 
(lonald,  felt  called  upon  to  state  that  they  viewed  "  with 
iiery  serious  concern  tJie  ejf'cct  upon  our  niaritinie  population, 
of  such  dependence  upon  American  cntjiloyers.  It  creates  syni- 
p((t}iy  vntJi  forc'ujn  sentiments  amlinstitutions,  and  affords  op- 
portunities for  instiUing  into  the  minds  of  our  people  ideas 
and  expectati(ms  altoijcther  inimical  to  British  connection. 
Tlicrc  is  actualli)  presenicd  to  theiu  the  exxunplc  of  subjects  of 
a  repuhlican  power  and  citizens  of  a  ftreign  State  prosecutinxj 
their  call'imj  at  the  very  doors  and  in  the  exclusive  li'mits  of 
lintish  suttjects  in  Canada,  who  arc  themselves  shut  oitt  of 
the  Duirkets  of  th<d  coiudri/  hij  a prohUntive  tariff]  adopted  in 
the  interest  of  their  own.  fshermcn,  while  ours  cannot  awn, 
enjoy  their  own   crclusive  privileges.     The  injiucnce  of  these 


9 

coniskleratiunn  cannot  he  utherunae  than  seductive  of  the  loijat 
attuchiiient  and  personal  enterprise  of  our  seaboard  population. 
It  discourages  the  ind.ependent  employment  of  Canadian  Jish- 
ing  craft  and  provincial  Jishernien.  It  tempts  our  Jishermen  to 
catch  and  sell  their  fish  clandestinely  to  oivners  of  American 
vessels,  vjho  can  afterwards  market  them  in  thi  United  States, 
free  of  duty,  as  Americati-  caught  fsh.  This  practice  denwr- 
alizes  (yar  population  and  accustoms  them  to  violations  of  our 
own  laios.    J 

Filially,  the  imperial  authorities  arranged  with  the  admin- 
istration at  Washington  the  appointment  of  a  joint  British 
and  American  Commission,  "  to  treat  of  and  discuss  the  mode 
of  settlimj  the  different  questions  which  have  arisen  out  of  the 
fisheries,  an  loell  as  those  loliich  affect  the  relatione  of  the 
United  States  toivurds  Her  Majesty's  possessio.::-;  in  North 
America.''  The  history  of  this  Commission  is  well  known. 
The  American  Commissioners  refused  to  consider  a  new  re- 
ciprocity treaty,  and  it  was  at  last  decided  to  admit  the 
United  States  to  the  inshore  sea  fisheries  of  British  North 
America,  on  condition  that  Canadian  tish  and  tish-oil  were 
admitted  free  of  duty  into  the  American  market,  and  that 
Commissioners  be  appointed  to  determine  the  amount  of  any 
compensation  which  in  their  opinion  ought  to  be  paid  by 
the  Government  of  the  United  States  in  return  for  the  priv- 
ileges accorded  to  their  citizens  under  the  treaty.  The 
Commission  met  at  Halifax  in  the  summer  of  1877.  The 
three  Commissioners,  M.  Maurice  Delfosse,  Belgian  Minis- 
ter at  Washington,  Mr.  E.  H.  Kellogg  and  8ir  A.  T.  Gait, 
gave  a  hearing  to  the  claims  of  the  parties  to  the  issue,  and 
after  considering  all  the  evidence  submitted  to  them,  a  ma- 
jority decided  to  award  the  sum  of  $5,500,000  in  gold, 
to  be  paid  by  the  Government  of  the  United  States  to  the 
Government  of  Great  Britain,  in  accordance  Avitli  the  pro- 
visions of  the  Washington  Treaty.  Mr.  Kellogg,  however, 
on  the  part  of  the  United  States,  dissented  from  the  award. 

However,  the  Americans  luul  no  other  alternative  open  to 
them  than  to  pay  the  money  and  carry  out  the  provisions  of 
the  Washington  Treaty.  The  arrangement  was  advantage- 
ous to  both  countries,  since  it  set  at  rest  a  vexatious  ques- 
tion and  stimulated  commercial  intercourse  biitween  them. 
27ie  American  (jovernnient  gave  due  notice  of  the  repeal  of 
the  treaty  after  it  had  been  in  existence  for  twelve  years. 
Consequently  it  e'xpired  in  July,  1885,  and  the  treaty 
of  1818  should  have  once  more  immediately  govt^rned  the 
relations  of  the  two  nations.  It  was  not  thought  advisable, 
however,  by  either  the  Camulian  or  the  Imperial  Goveriimout 
to  exclude  American  tishermen  at  once  from  the  tisheries,  as 
many  of  them  vvt.'ie  already  in  Canadian  waters  when  the 
treaty  came  to  an  end,  uiiel   had  they  been  seized  without 


10 

full  notice  having  l)een  pieviouwly  given  them,  a  serious 
feeling  might  have  arisen  between  the  countries  immediately 
interested.  After  considerable  correspondence  between  the 
respective  Governments  of  London,  Ottawa  and  Washing- 
ton, it  'Was  agreed  that  steps  should  he  taken  at  the  earliest 
date  possible  for  the  appoi?itinent  of  a  joint  Comrnission 
"  chanjed  'with  the  consideration  and  settlement,  upon  ajiist, 
equitable  and  honorable  basis,  of  the  entire  question,  of  the  fish- 
ing rights  of  the  two  (rovernments  and  their  respective  citizeiis 
on  the  coasts  of  the  United  States  and  of  British  No7'th  Amer- 
ica."  Accordingly,  during  the  past  season  American  fisher- 
men freely  freimented  the  waters  of  the  Dominion.  How- 
ever, Canada  had  no  other  course  open  to  her  in  this  per- 
jilexing  dilemma,  involving  such  important  international 
considerations,  than  to  agree  to  the  temporary  arrangement 
in  question,  with  the  hope  that  the  difficulty  would  be  satis- 
factorily settled  in  the  way  proposed.  It  is  pleasant  to  tiud 
that  President  Cleveland  is  evidently  desirous  of  arriving  at 
a  just  and  honorable  solution  of  the  question  as  soon  as 
possible.  In  his  message  to  Congress  in  December  last,  he 
exi)resses  his  opinion  that  "  in  the  interest  of  good  neigh- 
borhood and  of  the  conmiercial  intercourse  of  adjacent  com- 
munities, the  question  of  the  North  American  fisheries  is  one 
of  large  importance."  After  recommending  that  Congress 
provide  for  the  appointment  of  a  Commission,  he  proceeds 
to  say :  "  The  fishing  interests  being  intimately  related  to 
other  general  questions  dependent  upon  contiguity,  consid- 
eration thereof,  in  all  their  equities,  might  also  properly 
come  within  the  province  of  such  a  Commission,  and  the 
fullest  latitude  of  expression  on  both  sides  should  be  per- 
mitted." 

It  is  obviously  injurious  to  all  sides  that  these  interna- 
tional issues  should  be  of  cimstant  occurrence,  when  it  has 
always  been  possible  to  settle  them  for  a  long  term  of  years, 
if  not  for  all  time.  The  Canadians  have  always  felt — and 
President  Cleveland  ai)i)arently  felt  the  same  way — that  the 
fishery  question  is  intimately  connected  with  the  commercial 
rtilatious  of  the  two  countries,  and  that  it  should  bo  ar- 
ranged in  the  shape  of  a  new  Reciprocity  Treaty  like  that 
of  1854. 

It  would  therefore  appear  that  the  claim  made  by  Canada 
that  the  United  States  are  now  entitled  to  such  rights  as 
wore  given  them  under  the  treaty  of  1818,  and  to  no  others, 
is  not  without  some  foundation.  It  appears  that  every 
treaty  subsequent  to  that  of  1818,  has  been  rescinded  bff  the 
United  States.  These  different  treaties  were  but  fenipo7nry 
relaxations  or  modifications  of  the  treaty  of  1818  and  in- 
tended so  to  be  when  agreed  to,  and  with  all  of  them  annulled 
tluuo   must   be   a  recurrence  to   that   of  1818  where   it  is 


11 

f 

claimed  by  Canada  all  rigJds  theretofore  eiijoyed  or  claimed 
hy  the  United  States  were  renomiced,  and  it  was  then  agreed 
that  the  treaty  of  1818  should  and  did  specifically  settle  all 
the  rights  and  privileges  which  the  United  States  were  to 
have  in  Canadian  waters.  In  the  first  section  of  that  treat}' 
the  United  States  "  reiiomice  forever  any  liberty  heretofore 
enjoyed  or  claimed  by  the  inhabitants  thereof  to  take,  dry  or 
cure  fish  on  or  within  three  marine  miles  of  any  of  the 
coasts,  bays,  creeks  or  harbours  "  of  the  British  dominions 
in  America.  After  the  provision  whereby  the  Americans 
renounced  all  the  rights  and  liberties  aforesaid,  it  was  pro- 
vided that  American  fishermen  were  to  be  permitted  "  to 
enter  such  bays  and  harbours  for  the  purpose  of  shelter  and 
repairing  damages  therein,  of  purchasing  wood,  of  obtaining 
water,  and  for  no  other  pvrjwses  whatever.'"  Applying  the 
nile  as  laid  down  by  Wheaton  and  Kent,  two  American 
jurists  of  great  learning  and  repute,  the  United  States 
will  be  shut  out  from  the  most  prolific  fishing  grounds  in 
the  world.  It  must,  however,  be  admitted  that  the  legal 
authorities  cited  are  almost  beyond  question.  They  are  quite 
in  accord  with  the  English  judicial  decisions  on  the  same 
subject. 

Under  the  provision  relating  to  the  circumstances  under 
which  American  fishermen  may  enter  Canadian  ports,  those 
fishing  vessels  which  have  entered  for  bait  and  have  been 
seized  therefor,  were  not  protected  by  the  treaty,  and  it 
would  appear  that  the  seizures  were  legally  justifiable.  It 
may  appear  to  manj'^  as  a  harsh  proceeding,  but  was  it  unduly 
so  when  it  is  considered  that  since  July,  1885,  when  the 
treaty  then  in  existence  expired,  at  the  iTistigation  of  the 
United  States,  the  Canadian  government  has  endeavored, 
without  success,  to  effect  some  new  treaty,  while  the  Ameri- 
can people,  though  recommended  so  to  do  ])y  President 
Cleveland,  have  not  evinced  any  desire  to  renew^  the  old  or 
enter  into  a  new  one  ?  So  long  as  matters  remained  as  they 
have  been  since  July,  1885,  the  Americans  have  certainly  had 
all  they  desired.  The  Canadians  felt  undoubtedly  that  a 
few^  seizures  would  bring  their  neighbors  to  a  sense  of  their 
position  as  a  similar  course  did  in  1877,  when  the  United 
States  was  called  upon  to  pay  and  did  pay  $5,500,000.  The 
people  of  Canada  are  now,  as  in  1885,  desirous  of  meeting 
the  people  of  America  in  some  fair  settlement  of  the  exist- 
ing diffitndties,  and  hav(*  expressed  themselv(>s  to  that  effect, 
and  it  is  thought  and  hoped  that  therc^  is  a  similar  desirc! 
among  the  people  of  th(^  United  States,  lioth  countries 
have  rights  and  both  will  maintain  them,  ntiither  country 
will  be  driven  into  sacrificing  those  rights  however  much 
there  may  be  of  the  rant  of  a  lick-spittle  class  of  ])oliticians 
Avho  feel    that   an  occasional  wrcMich   of  the    lion's  tail    is  a 


1'2 

prolific  moans  of  aecurin<j;  votes.  Witli  the  fuir-mindtHl  men 
who  are  at  present  at  the  head  of  the  different  governments, 
both  no  doubt  fully  appreciating  the  desiral)ility  of  a  settle- 
ment, an  amicable  .and  impartial  arrangement  becomes 
feasibh^,  and  considering  the  two  countries  at  difference, 
almost  inevitable. 

Had  President  Cleveland's  wise  suggestions  been  fol- 
lowed, there  would  have  beim  no  cause  for  the  trouble  which 
has  occurred,  and  the  press  would  not,  as  now,  with  a  few 
exceptions,  been  tilknl  with  the  clamor  of  persons  who  hope 
to  ride  into  office  upon  the  prejudices  aroused  by  misrepre- 
sentations of  the  facts  involved. 


